Case: 15-20731      Document: 00514632298         Page: 1    Date Filed: 09/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 15-20731                                  FILED
                                 Conference Calendar                      September 7, 2018
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LINO ISAAC CARRILLO-HERNANDEZ, also known as Lino Carrillo-
Hernandez, also known as Lino Carillo-Hernandez, also known as Lino Isaac
Carrillo, also known as Lino Isaac Hernandez Carrillo, also known as Lino
Carrillo Hernandez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-476-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DENNIS, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Lino Isaac Carrillo-Hernandez was convicted of illegal reentry after
deportation and sentenced to thirty-two months of imprisonment. On appeal,
Carrillo-Hernandez contends that the district court erred by applying an eight-


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-20731     Document: 00514632298     Page: 2   Date Filed: 09/07/2018


                                 No. 15-20731

level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) and entering a judgment of
conviction under 8 U.S.C. § 1326(b)(2), both based on a finding that his prior
Texas conviction for evading arrest with a motor vehicle constituted an
aggravated felony.     Carrillo-Hernandez argues that this prior conviction
cannot serve as an aggravated felony under either the Guidelines or
§ 1326(b)(2) because the incorporated definition in 18 U.S.C. § 16(b) is
unconstitutionally vague. We affirmed. United States v. Carrillo-Hernandez,
671 F. App’x 361 (5th Cir. 2016) (per curiam).
        The Supreme Court granted Carrillo-Hernandez’s petition for a writ of
certiorari, vacated our judgment, and remanded for further consideration in
light of Sessions v. Dimaya, 

, 1212, 1223 (2018). In Dimaya, the
Supreme Court held, consistent with Carrillo-Hernandez’s argument
regarding § 1326(b)(2), that 18 U.S.C. § 16(b) is unconstitutionally vague as
incorporated into the Immigration and Nationality 

,
1223.    Accordingly, Carrillo-Hernandez is correct that his prior conviction
cannot constitute an aggravated felony warranting judgment under
§ 1326(b)(2).
        As we subsequently held in United States v. Godoy, however, § 16(b)
remains validly incorporated into the advisory Guidelines for definitional
purposes. 

, 533, 539 (5th Cir. 2018) (“[W]hen § 16(b) is used by
the nonbinding Guidelines solely for definitional purposes, vagueness-doctrine
principles do not apply.”).   Accordingly, to the extent Carrillo-Hernandez
challenges the calculation of his Guidelines range, his argument is without
merit.
        In light of Dimaya, we VACATE the district court’s judgment and
REMAND for entry of judgment under 8 U.S.C. § 1326(b)(1) rather than
§ 1326(b)(2).



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